On April 25, 2013, the United States Court of Appeals for the
Second Circuit issued a landmark decision in a closely-watched fair
use copyright case, Patrick Cariou v. Richard Prince, Gagosian
Gallery, Inc. and Lawrence Gagosian, holding that 25 artworks
by noted appropriation artist Richard Prince, which had been
marketed and sold by Gagosian Gallery, made "fair use" of
and did not infringe on Patrick Cariou's copyright in his book
"Yes Rasta."
This is an important victory for appropriation artists, and the
galleries and museums that show their work, as the Second Circuit
rejected the trial court's narrow definition of fair use,
holding that secondary works need not comment on, criticize, or
relate to the historical context of the original work. The Second
Circuit adopted the arguments Withers Bergman LLP made to the lower
court on behalf of Gagosian Gallery and Lawrence Gagosian, that
fair use may be found when a secondary work is transformative;
i.e., if it creates new information, new aesthetics, new insights
and new understanding. Applying this standard, the Second Circuit
found that 25 of Prince's 30 artworks clearly "manifest an
entirely different aesthetic for Cariou's photographs,"
with different character, different "creative and
communicative results," intended for a different market and
audience. The Second Circuit has directed the trial court to
reassess the remaining five works under this same standard. In
rendering this ruling, the Second Circuit has lifted the chilling
effect the trail court's decision had on postmodern and
contemporary art, which heavily relies on what already exists to
create new and different forms of expression.
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